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Measuring Inclusivity Diversity and Equity Progress: New Challenges, Fresh Opportunities

For years, if not decades, companies have used data to hold themselves accountable for diversity initiatives under the adage, "What gets measured gets done." Companies now have digital tools to collect and access Inclusivity Diversity and Equity (ID&E) data more efficiently and face regulatory requirements requiring ID&E metrics, such as pay transparency legislation. As companies face increasing pressure to collect and use ID&E data, it's important to proceed carefully and thoughtfully.

What can ID&E data be used for?

ID&E data enables companies to measure progress, which can then be used to set priorities and develop ID&E programs, including HR practices, pay gaps, barriers to recruitment, accessibility and diversity in leadership.

Aren't we not supposed to ask about these kinds of things?

Many HR teams have been trained not to ask questions about grounds protected by human rights laws. However, these laws include an exception for programs intended to improve the employment experience for equity-deserving groups. In other words, ID&E metrics cannot be used to discriminate against an employee but to improve access to opportunities at the workplace.

Isn't this all just reverse discrimination?

"Reverse discrimination" is not a recognized legal claim in Canada. Canadian human rights laws protect programs intended to address systemic discrimination. Our Courts have consistently stated that identical treatment can perpetuate disadvantage and that achieving equality sometimes requires different treatment.

Are we increasing our legal risk by collecting this information?

When companies start to gather ID&E data, there are many unknowns. What if someone leaks the information? What if the data reveals discriminatory practices? Will it open the door to litigation? There are legal risks involved in gathering data. But, these risks can and should be balanced against the risks of failing to track progress and encourage transparency about ID&E initiatives.

Shouldn't we just focus on getting the most qualified candidate?

Using ID&E metrics often attracts criticism that employment decisions should be based on "merit" and not on individual characteristics. It is important to address this question head-on. No one should have to prove that they deserve to be hired or promoted.

Questions about "qualifications" and "merit" tend to assume that the company's hiring processes are equitable, inclusive and accessible. It suggests that only the majority group is qualified to perform the job—without taking steps to ensure this is the case. Designing a more equitable program involves scrutinizing the hiring and promotion process. Collecting ID&E metrics enables the organization to measure the effectiveness of these programs and identify where more work is needed to attract and retain diverse candidates.

Recap: Collecting and using ID&E metrics

As a recap, as you collect data and quantify progress on ID&E – identify your purpose. Have a plan. Get legal advice. Gathering ID&E data is critical to making progress, but companies must be thoughtful in addressing the talent and legal risks of gathering personal information.

Jillian Frank is an experienced employment lawyer and inclusive leader with both legal and operational knowledge of workplace issues. She advises clients from a variety of sectors, focusing on providing practical solutions to complex employment and labour issues, human rights, health and safety, privacy, mobility, workplace investigations and incident management.
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